Suzie and Rodney Holm, in St. George recently, are charged with bigamy and sexual misconduct in polygamist "spiritual marriage."

ST. GEORGE — The star witness against a polygamous couple charged with bigamy and sexual misconduct is not cooperating with state prosecutors, according to a document filed in 5th District Court.

The state has been unable to serve Ruth M. Stubbs, the former third wife of Rodney Holm and sister to Holm's legal wife, Suzie Holm, with a subpoena to appear in court on Tuesday for a scheduled preliminary hearing in the matter, a document filed Friday by the Utah Attorney General's Office states.

Rodney Holm is charged with three counts of unlawful sexual conduct with a minor 16 or 17 years old and one count of bigamy. Suzie Holm is charged with one count each of aiding and abetting her husband with unlawful sexual conduct with a minor and bigamy. All charges are third-degree felonies punishable by zero to five years in prison and a $5,000 fine.

The charges stem from a state investigation that began after a now 20-year-old Stubbs aired details of her marriage to Rodney Holm during a child custody battle earlier this year. That case has since been settled.

Rodney Holm and Ruth Stubbs participated in a "spiritual marriage" ceremony conducted by officials of the Fundamentalist Church of Jesus Christ of Latter Day Saints when she was 16 and he was 32. Three children were born to Ruth, two of them by the time she was 18. Utah law makes it a crime for someone 10 years older than a 16- or 17-year-old to have sexual relations with that person unless they are legally married.

A motion to continue the Holms' preliminary hearing was filed Thursday by Utah assistant attorney general Kristine Knowlton. The Holms' attorney, Rod Parker, filed a motion opposing the state's request on Friday.

"The state has relied upon representations from counsel for Ms. Stubbs that she would cooperate and appear at the preliminary hearing and that counsel would accept service of a subpoena on her behalf," Knowlton's motion states.

Stubbs, who is represented by Arizona lawyer William Walker, former Utah attorney general Jan Graham and two other Utah-based lawyers, now lives in Phoenix.

"I was advised by Mr. Walker that his client told him she would not appear at court on Tuesday because she had not been personally served with a subpoena, in spite of his efforts to encourage her to attend," Knowlton's motion continues. "The state has no reason to doubt Mr. Walker and believes he has made every reasonable effort to get his client to comply with the subpoena sent to him on her behalf."

Walker did not return a call placed to his Tucson office on Saturday.

Rodney Holm, who remains married to two women and is father to 21 children, is a member of the FLDS Church, whose teachings include practicing polygamy. Rodney Holm, who also is an 11-year police officer certified in Utah and Arizona, resides in Hildale, Utah, on the Utah/Arizona border. Hildale's closest neighbor, Colorado City, Ariz., is home to about 7,000 members of the FLDS faith.

Stubbs' reluctance to attend the preliminary hearing is understandable and predictable, said Parker, and reveals a fundamental and fatal flaw in the state's evidence.

"Ms. Stubbs handwrote and signed a statement on Sept. 23, 2002, that says she does not want Mr. Holm to 'go to jail!' and clearly signals that she will not cooperate in his prosecution," Parker wrote in his Friday memo to the court. "With that document in hand, the state proceeded to file criminal charges not only against Mr. Holm, but against Ms. Stubbs' own sister as well."

The state also sought and received a no-contact order against the Holms, which Parker said was against Stubbs' wishes.

"There is no reason to believe that a continuance will remedy the state's problem," Parker's motion states. "Ms. Stubbs' refusal to help the state prosecute her sister and the father of her children is not based on some temporary condition that will go away if the state is granted a two-week continuance."

Knowlton's motion also states she does not know the home or work address of Stubbs and that Stubbs' attorney would not reveal that information to her.